I recognize it is frustrating to see a coworker apparently shirking his duties or not functioning up to par. But discipline is a management responsibility. Management has its reasons, whatever they are, to allow this employee to remain employed. There may be things going on that you know nothing about. Perhaps this employee has a reasonable accommodation for a disability, in which case the employer is prohibited from letting anyone know. Maybe the employee is on a last chance agreement and will be gone next week. Or maybe management is doing a poor job. Whatever is going on, it is between management and the employee, no matter how annoying this coworker is to you and others.
However, if the comments this employee makes are extreme enough to constitute sexual harassment or another kind of harassment, you should not have to endure this abuse in silence. File a complaint with HR. This triggers a duty on the part of management to investigate. If management is doing its job, at a minimum, the employee will be questioned. If the comments persist and management does nothing about it, ask your union to file a grievance.
Before you complain, be sure the comments truly are unlawful harassment. Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment is also illegal if it is based on whistleblower status, taking or needing family leave, or some other protected category.
Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.
Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
The decision to terminate an employee is almost always based on a multiplicity of factors, many of which may not be visible or known to co-workers. You cannot cause your co-worker to be fired, but it is not uncommon for an employee to hurt their own employment by trying to cause discipline or termination of another worker. Step back from this situation and figure out ways to disengage emotionally on this issue -- it is not in your control. Only your own performance as an employee is squarely within your control.
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Being a member of a union usually means that there are more procedural safeguards in place before a termination can occur, meaning that there are processes put in place to address issues of discipline, including contractually agreed progressive discipline schemes. Additionally, in some situations there are greater protections contractually agreed to related to management/labor relationships, meaning that some collective bargaining agreements will make certain management conduct off limits that is otherwise not unlawful outside of the collective bargaining agreement arena.
There is a perception by many employees and some supervisors as well that it is darn near impossible to terminate certain union employees. While not true, some unions make the employer jump through so many hoops that some supervisors simply abandon trying to run that gauntlet.
Ultimately, if the employer wants to discipline or terminate this employee, it has every right to do so based on what you say is occurring. It is fully within the employer's discretion to let this employee play solitaire at his desk if that is what the employer wants. However, once that employee crosses the line in terms of unlawful harassment, discrimination or retaliation, the employer has an affirmative duty to protect you and your co-workers from that unlawful conduct. If he gets too personal and starts engaging in sexual harassment, or harassment based on some other protected conduct, use the company's reporting mechanism to get that protection.
Good luck to you.
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